The Supreme Court today issued a landmark 5-4 ruling in a reverse discrimination case regarding 19 white firefighters and one Hispanic firefighter who were denied promotions because they outperformed African American firefighters on an objective exam.
In this case, the city of New Haven, Conn., fearing a lawsuit from the minority firefighters, discarded the test results solely on the basis of the firefighters' race, a direct violation of the Civil Rights Act of 1964. There is no argument that this is the case, and the Supreme Court ruled the white firefighters were entitled to justice.
The majority opinion was written by Associate Justice Anthony Kennedy, who was the swing vote. He joined Chief Justice John Roberts and his fellow conservative associate justices Clarence Thomas, Samuel Alito and Antonin Scalia.
The key to the decision was buried within Kennedy's opinion and regards a consultant New Haven hired to create the exam, a company called Industrial/Organizational Solutions, Inc. (IOS). According to Kennedy:
At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results -- which IOS would use to develop the examinations—would not unintentionally favor white candidates.Nevertheless, the minority candidates didn't do as well as the white and Hispanic and when New Haven opened the subject to public debate, it became "rancorous," according to Kennedy. Members of the minority community, apparently spoiled by the proliferation of affirmative action in the US, resolved to sue if the city refused to throw out the results. The white and Hispanic firefighters resolved to sue if they did, then followed through on their threat when the city sided with the minority.
Liberal Associate Justice Ruth Bader Ginsberg, writing for the dissenting, minority opinion, wrote that the minority firefighters deserved a promotion because in the past, "[i]t took decades of persistent effort ... to open firefighting posts to members of racial minorities." Arguing that "context matters," Ginsberg went on:
The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion.What Ginsberg is essentially saying is that the standard upon which New Haven bases its promotions -- a standard to which all parties initially agreed -- should be discarded simply because it produced a result that was undesirable. The argument seems to be that if the minority firefighters didn't do as well as the white and Hispanic firefighters ... well, then it must be rigged.
It's important to mention that the exam was objectively based and in no way a gauge of the candidate's cultural background or heritage; rather it gauged his or her knowledge of life-saving procedures and firefighting techniques. No one has said that the African American firefighters are incapable of doing well on the exam, either. In fact, the results here are simply a matter of individual performance.
In her dissent, Ginsberg points out the disparities in the test results, but doesn't use a single question as an example of racial bias. Instead, she relies on other cultural differences that she alleges gave Caucasian firefighters a leg up over their African American counterparts. These include not having access to materials because they're "first-generation" firefighters, or not having books because they were on "back order." She stresses that leadership qualities, "command presence," and "interpersonal skills" all were overlooked in favor of a "multiple-guess" test that gauges the candidate's actually firefighting knowledge.
Had the results been reversed, what then? Would the test results have ever become an issue? Would their certifications have been thrown out at all? Would anyone have explored whether there was bias involved?
I doubt it.
Interestingly enough, last week, a guest writer for this site discussed the role affirmative action played in the selection of Second Circuit Court of Appeals Judge Sonia Sotomayor to fill the vacancy being created by retiring Justice David Souter (who joined the dissenting opinions). When Sotomayor reviewed the case, she dismissed it with just a single paragraph, opting to say nothing of consequence and perhaps risk the flaw in her judgment being exposed.
Sotomayor's confirmation hearings will proceed next month, and the High Court's reversal of her decision will undoubtedly be addressed -- as it should be -- by members of Congress. The timing, of course, could not be worse for her, but it couldn't be better for the integrity of the Supreme Court.
This case, more than any other, demands a fuller explanation than a single paragraph, and her explanation will be very telling.
Join Me on Facebook |
Get My Twitter Updates 
Photo © Chip Somodevilla/Getty Images
Comments
I think you’ve misconstrued Justice Ginsburg’s opinion, regarding the removal of results, “because it produced a result that was undesirable”.
Even if New Haven officials erred in their interpretation of Title VII, they – nor Justice Ginsberg – were concerned about what was “undesirable” or not. The city’s officials were concerned with a disparate showing, and therefore exposure to lawsuits based on Title VII. It’s worth considering that the city’s at-large population is 60% minority, and at the time of the exams – 2003 – only 1 of 21 fire captains were African-American. This exam could easily have been seen as perpetuating a white-majority that was inconsistent with the city’s demographics.
If the standard for promotion at the New Haven fire department were a dance contest instead of a written exam (neither one of which is an accurate predictor of job performance) would you still deny them their right to toss out the results because they were lopsided? This is a victory for white supremacists only, because if you beleive in equality, then any standard that produces lopsided racial representation is a faulty method.
The right is feverishly overlooking the fact that Sotomayor’s decision was NOT based on race, but on legal precedent about jurisdiction. That’s why it was short and to the point. It was an acknowledgement of New Haven’s right to decide their own hiring and promotion policies
Thanks for the link to the Ricci v. DeStefano opinions. Just read the dissent.
Justice Ginsburg might have written a lot less. The second comment, above, suggests she might merely have stated:
Ecce at the promotions. For a result that is proportionally disparate by group within the apposite governing jurisdiction res
ipsa loquitur applies.
—-
btw — am honored to avoid taking anyone’s work away – being unemployed.
whether can charge GOP with political rejectionism is arguable — GOP doesn’t seem to consider sage advice, citing Federalist Papers, from this New York City populist (populism is
the form of gov’t the Founders established. fear it is has been discarded for person-elitism).
I’m not a huge fan of affirmative action. It only causes problems like this. I think the original decision was flawed, but in relation to high court pick Sotomayor, she was actually following precedent, she was trying *not* to legislate from the bench, the thing all the conservatives are scared of. I’m honestly skeptical of her as a pick, I don’t know where she stands on many issues, and I was honestly wishing that Obama had chose a more liberal judge.
Having noted in the dissent, apparently remarked on, approvingly by another source, the suggestion that Congress will undo the Court’s opinion in Ricci v. DeStefano, I expect those who would call for congressional “correction” of this decision will have unleash a common sense/fair play firestorm.
To borrow from a former presidential candidate: “bring it on.”
.